Dugul McDougall Motorsport Pty Ltd v Touring Car Entrants' Group Australia Pty Ltd

[2002] VSC 122

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No.  of

DUGUL McDOUGALL MOTORSPORT PTY. LTD.	Plaintiff
v.
TOURING CAR ENTRANTS' GROUP AUSTRALIA PTY. LTD. AND ANOTHER	Defendants

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JUDGE:	BEACH J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 APRIL 2002
DATE OF JUDGMENT:	10 APRIL 2002
CASE MAY BE CITED AS:	DUGUL McDOUGALL MOTORSPORT PTY. LTD. v. TOURING CAR ENTRANTS' GROUP AUSTRALIA PTY. LTD. & ANOR.
MEDIUM NEUTRAL CITATION:	[2002] VSC 122

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CATCHWORDS:      Interlocutory injunction – Delay – No serious issue to be tried – Damages adequate compensation in any event.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. I. Upjohn	Tress Cocks & Maddox
For the Defendants	Mr. R. Brett Q.C. and Mr. P. Gray	Allens Arthur Robinson

HIS HONOUR:

1. The first-named defendant, Touring Car Entrants' Group Australia Pty Ltd (TEGA), operates a team and driver franchise system to represent the owners of motor vehicles known as V8 Supercars who compete in various motor races.  The second defendant, Australian V8 Supercar Company Pty Ltd (AVESCO), controls, manages, promotes and organises the V8 Supercar category of sport in Australia and New Zealand.  The plaintiff, Dugal McDougall Motorsport Pty Ltd, is a member of TEGA.

1. There is to be a V8 Supercar program of racing at Philip Island on Saturday 13 April 2002.  Both TEGA and AVESCO have made a decision that the number of grid positions at Philip Island will be reduced from 36 to 32.  The plaintiff by a summons, which I assume has been filed this day, seeks injunctive relief against TEGA and AVESCO of the following nature:

1.An interlocutory injunction restraining the defendants from reducing the number of grid positions at the Philip Island races from 36 to 32.

2.An order that the defendants provide reasons for the first and second decisions to increase the number of cars per team and to reduce the number of grid positions from 36 to 32.

It is unnecessary to refer further to the first of those decisions in my reasons for the ruling I propose to make in this matter.

1. In an affidavit sworn by one Philip Cattach this day, Mr Cattach, who swears he is the Chairman of TEGA and the Chief Executive Officer of AVESCO, has stated that the change from 36 to 32 was made for safety reasons.  The matter is dealt with in a number of paragraphs in his affidavit but I think it is sufficient for present purposes to read paragraph 35, which says:

   "35.     The TEGA board considers that any increase in the grid numbers that have applied since the start of the 2001 championship series would compromise the safety of drivers, team members and officials, particularly in the pit lane.  For this reason the TEGA board does not now separate questions about grid size from considerations of safety.  If this Honourable Court were to require TEGA and AVESCO to admit 36 competitors at Philip Island, the pit space available for each competitor would be smaller than the size of each car.  This would, I believe, increase the risk of injury in the pit lane significantly and undermine a number of the safety initiatives I have mentioned."

2. It is clear from that paragraph, of course, that the decision to reduce the number of cars competing from 36 to 32 is not a recent one.  In Mr Cattach's affidavit he swears that in about November 1999 the board of TEGA resolved to reduce the number of grid positions at each sprint round to 32 with effect from the start of the 2000 championship series.  He goes on to state that in about January 2000 TEGA notified its members that no more than 32 cars would be permitted to compete in the sprint rounds of the 2000 championship series.  In late April he became aware that a number of teams were agitating to have TEGA's decision in relation to the grid sizes reversed and that as a result of the agitation the TEGA board reviewed its decision and decided to abandon the revised grid sizes for the remainder of the 2000 championship series.  However, in reaching its decision to abandon the revised grid sizes for the 2000 championship series, the TEGA board determined that it would reinstate the revised grid sizes at the commencement of the 2001 championship series, and on 4 May 2000 he sent a fax to all members of TEGA notifying them of the review of the board's decision in relation to grid sizes.  The last paragraph of the fax reads:

"Finally we wish to advise that the board has every intention of reinstating the qualifying policy at the start of next season and we will be confirming the final details after Bathurst."

1. On 6 October 2000 AVESCO issued a press release launching the calendar for its 2001 championship series.  The press release and the various documents which accompanied it specified the grid size for each of the sprint rounds.  The press release itself contained the following statement:

"AVESCO will enforce a maximum grid capacity of 32 cars at each of the standard Australian rounds, with the top 25 drivers and 13 Level 1 teams qualifying automatically."

1. On 6 October 2000 Mr Cattach says that he delivered a letter to all team managers while they were at the Sandown circuit for the Sandown round of the 2000 championship series.  As I understand it, that letter indicated that the grid size for Philip Island was to be 32.

1. The plaintiff was aware of the situation so far as the number of cars on the grid was concerned by, at the latest, early this year.  That is borne out by the fact that on 7 February it wrote to TEGA and its members making known its concerns about the reduction in the number of cars permitted to start on the grid.  On 12 February 2002 the Chairman of AVESCO wrote to all Level 1 and 2 members of TEGA relating to the plaintiff's proposal.  The letter is brief, to say the least of it, and it reads:

"I have read the proposal put forward by Peter McDougall dated 7 February 2001 (I assume he means 2002 unless he has been slow in getting out his correspondence).  Without doubt it is one of the most absurd documents I have unfortunately wasted time reading.  I suggest we concentrate on running the very successful business we have at hand.

Regards

AVESCO."

One would have thought that the plaintiff would have been left in no doubt as to the attitude of AVESCO to the changes that the plaintiff had proposed in its letter of 7 February.

1. On 3 April last the plaintiff's New South Wales solicitors wrote to TEGA and AVESCO complaining about the reduction in grid size and seeking an undertaking by 5 p.m. last Friday that the grid size of the Philip Island meeting on Saturday next be the maximum permitted, which previously had been greater than 32.

1. However, by fax of 5 April, which I accept was not received by the plaintiff's New South Wales solicitors, or at least not read by them, until 9 April, TEGA refused to give the undertakings sought.  Hence the application to this court.

1. There is a very long-established equitable principle relating to applications for urgent injunctive relief, and that is that a person seeking such relief must seek it at the earliest opportunity, and, in circumstances such as this, where that person is now seeking to interfere with an event which has been organised for Saturday next, cannot sit on his or its rights until the last moment and then seek by means of a mandatory injunction to alter a longstanding decision which, on the face of it, that party was entitled to make.  On that ground alone, I would refuse the injunction.

1. However, I feel constrained to go on and say that in this case I am by no means satisfied that there is a serious issue to be tried.

1. It is clear from the provisions of the franchise agreement that TEGA and AVESCO are the bodies responsible for arranging, conducting and supervising the conduct of V8 Supercars motor racing.  In my opinion it was the function of those bodies to determine the appropriate limit to be placed on the number of cars competing in any one race.  When one has regard to the history of the decision to limit the number on the grid to 32, a history which, as I have indicated, goes back to 1999, I am not persuaded that they have acted in any way inappropriately in that regard.

1. Finally I should say this.  If it did transpire, contrary to the views that I have formed in relation to the matter, that the defendants have in some way acted improperly in making the decision they have and that the plaintiff has suffered damage as a consequence then in my view the plaintiff would be adequately compensated by an appropriate award of damages.

1. Accordingly the summons seeking injunctive relief will be dismissed with costs to be taxed and paid by the plaintiff.

(Discussion ensued.)

1. HIS HONOUR: 

1. There is no reason now for this proceeding to remain on foot and I now order that it stand dismissed.  I do not propose to alter the order I made in relation to the costs of the proceeding.  I do not consider the behaviour of the plaintiff has been so contumelious as to justify a punitive order being made against it.

1. The formal order will be that the proceeding, including the summons seeking injunctive relief, will be dismissed with costs to be taxed and paid by the plaintiff.

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